Citation Nr: 21077292 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 11-13 751 DATE: December 29, 2021 ORDER Entitlement to service connection for a right shoulder condition is granted. FINDING OF FACT The Veteran's right shoulder condition occurred in, or is related to, his period of active duty service. CONCLUSION OF LAW The criteria for service connection for a right shoulder condition are met. 38 U.S.C. § §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1980 to August 1980, November 1990 to April 1991, and from November 2004 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case for additional development in December 2016, May 2018 and August 2020. The case is now again before the Board for further appellate consideration. In its August 2020 remand, the Board also remanded the Veteran's claims for service connection for a right knee disability. Subsequently, this claim was granted in an October 2020 rating decision. This decision constitutes a full grant of the benefits sought on appeal, and thus, the issue of entitlement to service connection for a right knee disability is deemed resolved. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303 (d). Active service includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in lien of duty. See 38 C.F.R.§3.6(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. Hickson v. West, 12 Vet. App. 247, 252 (1999). Additionally, claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309 (a) - benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303 (b). A decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303 (b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). In its determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a right shoulder condition The Veteran asserts that he injured his right shoulder while in service. The Veteran has stated throughout the record that his right shoulder pain began during service; specifically, when he fell in Iraq in 2005. After a careful review of the evidence of record both lay and medical, the Board finds the Veteran had a right shoulder injury in service that resulted in right shoulder pain and as a VA examination in April 2019 shows that the Veteran had current diagnosis of right shoulder tendinitis and acromioclavicular joint osteoarthritis, the Board finds that service connection for a right shoulder condition is warranted based upon the continuity of symptomatology. As to direct service connection, the evidence of record shows that in April 2019 the Veteran was shown to have a current diagnosis of right shoulder tendinitis and acromioclavicular joint osteoarthritis. Accordingly, the Veteran meets the first required element for a direct service connection claim. As to an in-service disease or injury, the service treatment records (STRs) show that in October 2005 the Veteran fell from three foot off the ground. While initially he complaint of neck and left shoulder pain, eventually he complaint about bilateral shoulder pain. In an August 2006 post deployment questionnaire, the Veteran indicated problems related to Iraq deployment included painful joints. Thus, the Veteran meets the second element for a direct service connection claim. The Veteran underwent a VA examination for the right shoulder in August 2008. The Veteran reported right shoulder pain with an onset in 2005 when he fell while serving in Iraq. In his report, the examiner noted the examination was normal and that there was no right shoulder pathology. However, the examiner noted that the right shoulder condition had significant effects on general occupational activities and described its impact as decreased mobility, problems with lifting and carrying, and pain. The examiner did not render an opinion. Post treatment records show that in July 2009, the Veteran reported he had had bilateral shoulder pain since injuring both shoulders in Iraq. In a March 2010 letter, The Veteran's private physician, Dr. C.E.M.Q. stated the Veteran complained of bilateral shoulder pain secondary to trauma during Army National Guard training in Camp Santiago in Salinas, PR. Pursuant to a March 2011 VA Gulf War medical examination, the Veteran reported that he began experiencing migratory pain in almost all of his joints, including his shoulders since 2004, while training at Fort Benning, Georgia. In a March 2017 VA examination report, the examiner noted the Veteran's report that he began having pain in his right shoulder after service, and that he was experiencing constant pain in the right shoulder at the time of the examination. The examiner diagnosed right shoulder tendinitis but stated there was no evidence the condition had its onset during active duty, ACDUTRA, or INACDUTRA. In this regard, the examiner noted the Veteran's STRs were silent for any right shoulder complaints, and that his first complaint was at his 2008 VA examination. Pursuant to the May 2018 Board remand, the Veteran was afforded an additional VA examination in April 2019. The Veteran reported that the injured his right shoulder in Ft. Benning, Georgia and then again in Iraq. The examiner noted diagnoses of right shoulder tendinitis and bilateral acromioclavicular joint osteoarthritis. The examiner opined the condition claimed were less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The VA examiner provided as rationale that the Veteran's lay statements lacks evidence in his medical records, that there is no evidence of a right shoulder traumas or conditions during active or inactive period of service. The examiner further based his rationale in the Veteran's post service treatment records that show complaint for a right shoulder condition in 2008. The Board again remanded the issue as the examiner did not comment on all of the Veteran's lay statements. Pursuant to August 2020 Board remand, the RO obtained an additional VA medical opinion in August 2020. The examiner opined the condition claimed was less likely than not incurred in service. As rationale, the examiner stated that although there was evidence of a left shoulder injury during active service in 2004-2005 there are no evidence of simultaneous right shoulder complaints or findings. The examiner noted that there was no record of a right shoulder condition until 2017 when right shoulder tendinitis was diagnosed. The examiner further based his rationale in the lack of contemporaneous complaints of right shoulder pain at the same time of the left shoulder complaints related to a fall in Iraq. The Board acknowledges the negative nexus opinion provided by the March 2017, April 2019 and August 2020 VA examiners; however, the Board finds these opinions have less probative value. In this regard, the March 2017 and April 2019 examiners did not take into consideration all the Veteran's statements; specifically, that he has experienced pain in his right shoulder since the fall in Iraq. The Board finds that the August 2020 examiner based the negative opinion partially on inaccurate facts. The record indicates that the Veteran reported painful joints in August 2006 and complaint of bilateral shoulder pain in August 2008. See August 2006 service treatment records and August 2008 VA examination. The VA examination reports focused on a lack of evidence of treatment of the right shoulder following the Veteran's in-service injury but did not discuss the impact of falling from a height of 3 to 4 floors in service. The lack of treatment is not dispositive if there is competent, credible evidence of symptoms during the relevant time period, as is the case here. Thus, the opinions are inadequate. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that a VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). To the extent that the Veteran asserts that he has a right shoulder disability manifested in pain and functional impairment, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and that his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Given the Veteran's current diagnoses of right shoulder tendinitis and acromioclavicular joint osteoarthritis for his right shoulder and the competent, credible lay statements and testimony of the Veteran, the Board finds the evidence is at least evenly balanced as to whether the Veteran's right shoulder condition is related to his in-service accident. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such an issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veteran's Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Upon review of the record, the Board finds the evidence to be in equipoise as to whether the Veteran's current right shoulder condition is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a right shoulder condition is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Romero-Sanchez The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.